Citation Nr: 0419619
Decision Date: 07/21/04 Archive Date: 08/04/04
DOCKET NO. 03-01 806 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Baltimore,
Maryland
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
WITNESSES AT HEARING ON APPEAL
Appellant and daughter
ATTORNEY FOR THE BOARD
M. C. Graham, Counsel
INTRODUCTION
The veteran served on active duty from July 1951 to July
1955, from September 1958 to September 1966, and from October
1969 to June 1976. He retired from the military after more
than twenty years of service. His service awards and
decorations included the Air Medal and the Distinguished
Flying Cross. He died in August 2000. The appellant is his
widow.
The instant appeal arose from a March 2001 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO),
in Baltimore, Maryland, which denied a claim for service
connection for the cause of the veteran's death.
The appellant testified at a personal hearing before the
undersigned Veterans Law Judge sitting at Washington, D.C.,
in February 2004.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
The immediate cause of death listed on the veteran's death
certificate is chronic obstructive pulmonary disease (COPD).
The appellant contends, in substance, that the veteran's COPD
began in service and/or developed as a result of the
veteran's in-service smoke inhalation and his exposure to
such substances as asbestos, jet fuel fumes, explosives,
Agent Orange, and napalm while in service. For these
reasons, she believes service connection for the cause of the
veteran's death is warranted.
In addition, in her February 2004 testimony, the appellant
indicated that the veteran had received pertinent treatment
at Crofton Convalescent and the Anne Arundel Medical Center
in Annapolis, Maryland. These treatment records are not in
the claims folder and apparently have not been sought.
Likewise, it appears that the records of the veterans final
hospitalization, noted on the death certificate and by the
appellant during the hearing, at the North Arundel Hospital,
Glen Burnie, Maryland, have not been associated with the
claims folder.
Accordingly, the case is REMANDED to the RO for the following
action:
1. The RO must review the claims files
and ensure that all notification and
development action required by
38 U.S.C.A. §§ 5102, 5103, and 5103A
(West 2002), the implementing regulations
found at 38 C.F.R. § 3.159 (2003) and any
other applicable legal precedent,
including Pelegrini v. Principi, No. 01-
944, (U.S. Vet. App. June 24, 2004), is
completed. In particular, the appellant
and her representative, if applicable,
should be notified of any information and
medical or lay evidence that is necessary
to substantiate the claim; which
information and evidence, if any, the
claimant is required to provide to VA;
and which information and evidence, if
any, VA will attempt to obtain on her
behalf. They should also be notified
that the claimant should provide any
evidence in her possession that pertains
to her claim.
2. The RO should contact the appellant
and request that she provide the RO with
signed releases and adequate identifying
information, where necessary, (VA Forms
21-4142), for the following health care
providers. After any necessary
authorizations have been obtained, the RO
should document attempts to obtain copies
of all pertinent records, including:
a. Private hospitalization records
pertaining to the veteran from the
North Arundel Hospital, Glen Burnie,
Maryland, including during the
period immediately prior to the
veteran's death in August 2000; and
b. Any records pertaining to the
veteran from Crofton Convalescent
around 2000; and
c. Any records pertaining to the
veteran of inpatient treatment from
the Anne Arundel Medical Center,
Annapolis, Maryland, in or around
November 1998, January and February
1999, and September 1999.
3. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
foregoing development action has been
conducted and completed in full. If any
development is incomplete, appropriate
corrective action is to be implemented.
4. The RO should then take adjudicatory
action on the claim here on appeal, to
include consideration of service
connection for the cause of death based
on exposure to herbicides. If any
benefit sought remains denied, the RO
should furnish the veteran and her
representative, if appropriate, with a
Supplemental Statement of the Case
(SSOC).
After the appellant and her representative, if applicable,
have been given an opportunity to respond to the SSOC, the
claims folder should be returned to the Board of Veterans'
Appeals (Board) for further appellate review. The Board
intimates no opinion as to the final outcome warranted in
this case.
This REMAND is to develop evidence and to ensure the
appellant is afforded due process of law. No action is
required by the appellant until she receives further notice,
but she has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans Benefits
Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat.
2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112).
_________________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).